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SELF-PRESENTATION

9 February, 2006

LEGAL

The litigant in person is an increasingly common sight in the modern-day courtroom, writes Kim Franklin. And litigants are starting to represent themselves for one reason alone - funding. In the old days, those with promising claims but no money were entitled to legal aid. While the Lord Chancellor may have had a bit of a headache when he came to review the bill, legal aid gave those who suffered legal wrongs access to justice. Lest you be seduced by the urban legend of the fat-cat lawyer feasting off the proceeds at the expense of the hard-pressed taxpayer, it's worth reflecting on the likelihood of growing obese on a diet of social disputes involving those who, by definition, are impecunious.

Nevertheless, the government decided to wipe the grin off the illusionary feline's face and effectively abolish legal aid. It has been replaced, in theory at least, by legal expenses insurance and conditional fee agreements.

Both these forms of funding require someone, either an insurance company or a legal adviser, effectively to bet on the outcome of the litigation.

Bearing in mind that, by reason of so-called 'litigation risk' - essentially the inability to control what a witness might say or a judge may think - even a cast-iron case has just a 70 per cent chance of success. You can see why tricky cases are seldom thought to be worth the candle.

In such cases, claimants without the wherewithal have to choose between representing themselves or abandoning their claim.

Defendants, of course, do not even have the luxury of a choice in the matter.

The proliferation of litigants in person presents real problems for the management of cases by judges. The delays and frustrations caused by the unrepresented can often lead to mistakes, as was illustrated by the salutary case of Ahmed v Butt (01.11.05).

Ms Ahmed claimed £30,000, her half share of the proceeds of the sale of a property in Essex, from Mr Butt, who claimed to have repaid the money to the claimant's father in Pakistan.

On the day of the trial, the defendant appeared in person and applied for an adjournment because, he said, he had had a very sore throat for days.

The judge took on board the claimant's suggestion that the alleged ailment was not genuine and proceeded with the case.

During the defendant's questioning of the claimant's witnesses, however, the judge repeatedly complained that he could not hear a word the defendant was saying. At the conclusion of the evidence, the judge announced: 'I think Mr Butt has said all he wants to say, ' without giving him an opportunity to make further submissions. The appeal court found that the judge was so determined to get to the end of the case that he lost sight of the basic requirements of fairness. The case had to be sent back for a new trial before a different judge. The cost of that second trial, to be borne in part by the taxpayer, will no doubt be factored into the debate as to the merits of legal aid.

Kim Franklin is a barrister and chartered arbitrator at Crown Office chambers in London.

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